State Constitutions Are Now an Urgent Abortion Battleground

California Governor Gavin Newsom and Democratic sponsors of a proposed state constitutional amendment protecting abortion rights. Photo: Rich Pedroncelli/AP In the lead-up to the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, it was widely understood that the elimination of the federal right to abortion would unleash a torrent of state legislative activity on abortion policy, particularly in red states where Republicans are eager to ban abortions.

A majority of states have simply followed federal constitutional law in this area, which for 49 years protected abortion rights. But in some states, courts have interpreted their own constitutional provisions guaranteeing privacy or personal autonomy as creating a separate state right to abortion in certain circumstances.

So we could increasingly see the kind of polarization in state constitutions that we’ve already seen in state abortion legislation. The legal maneuvering over state constitutional provisions affecting the legality of abortion should not be confused with the current spasm of litigation challenging state “trigger laws” that sought to ban or restrict abortion the minute the U.S. Supreme Court reversed Roe v. Wade.

Even if Dobbs took abortion policy out of the federal courts for the foreseeable future, state courts could see a massive expansion of suits and countersuits on the subject, with voters weighing in regularly and state judges becoming highly controversial figures.

ed_kilgore Roe Vs Wade & Abortion

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